M.a. Consulting Group Ltd v Jane Kibiru
The bottom line
#Kenya's Court of Appeal ruled employers cannot change an employee's contract after it expires, and money-damages claims must be strictly proven with real evidence.
What this practically means
#Executive summary
#Key legal issues
#Effect of Rule 21 of the ELRC (Procedure) Rules, 2016 on documentary evidence
Rule 21 is discretionary ('may'), not mandatory. Where pleadings disclose contested issues of fact, those issues must be proved by oral evidence; filing documents alone cannot discharge the burden of proof.
The court held the germane issue was whether the pleadings disclosed disputes of fact requiring oral evidence. The appellant's counter-claim for negligence and loss was hotly contested, so the proper course was viva voce evidence. Counsel had a duty to guide the client; merely filing documents could not satisfy the requirement that he who alleges must prove. The respondent's claim, by contrast, rested on interpreting an undisputed contract clause and could be determined without oral evidence.
Whether the appellant's counter-claim for special damages was sustainable
The counter-claim failed: it was pleaded as a 'potential loss' while claiming it as an incurred loss, an irreconcilable pleading, and special damages must be strictly proved.
The court held the pleadings were 'totally irreconcilable' because 'potential loss' and 'actual loss incurred' cannot convey the same meaning, so the claim was bound to fail on pleading alone. In any event, special damages must be strictly proved with evidence establishing proximate cause under the but-for test; throwing a bundle of documents to the court does not meet that standard. The claim collapsed for want of evidence.
Whether the appellant could unilaterally vary the gratuity clause after contract expiry
No. The gratuity had accrued; unilateral alteration after expiry was a breach of contract, contrary to sections 10(5) and 13(1) of the Employment Act and Article 41(1) of the Constitution.
Clause 4 clearly provided for gratuity of 25% of annual gross salary per year payable at the end of the three-year contract, the only exception being termination before expiry. The contract was undisputed and no vitiating factor (coercion, fraud, undue influence) was pleaded or proved. The court rejected the invitation to condone the attempted unilateral variation, which flew in the face of statutory and constitutional prohibitions on unfair labour practices.
Whether the trial court failed to consider the appellant's submissions and evidence
No. A judgment need not embody all submissions as a transcript; the trial court considered all the material before it and no misdirection was shown.
The court stated the test: if a material fact is completely absent from a judgment or dealt with only superficially, that is a misdirection, and the appellate court must then ask whether it is so material as to justify interference. Having read the submissions, the evidence and the trial judgment, the Court was satisfied the learned judge considered all the material before her and found no merit in the complaint.
Legal principles established
#- Where the resolution of a dispute requires determination of disputed issues of fact, proceeding by written submissions only is unsuitable; contested facts must be proved by admissible oral evidence, and Rule 21 is discretionary, not mandatory.
- Special damages, loss of income or loss of profits must be specifically pleaded and strictly proved with a degree of certainty and particularity; documents simply thrown to the court do not discharge the burden of proof.
- A court cannot rewrite a contract between parties; an employment contract can only be varied with the agreement of both parties, and unilateral variation after gratuity has accrued breaches the contract, sections 10(5) and 13(1) of the Employment Act and Article 41(1) of the Constitution.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the costs of the appeal to the respondent
- 3.The appellant shall also pay to the respondent the costs of the proceedings before the trial Court
- On appeal from
- Employment and Labour Relations Court
- Cause Number 497 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M.a. Consulting Group Ltd v Jane Kibiru", Case Analysis (2024). Civil Appeal (memorandum of appeal dated 30th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/667/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.